Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, November 14, 2006

Writing with Passion

True nerds like me will probably already have seen this in their daily e-mail from Oxford University Press with "Garner's Usage Tip of the Day" (to which you can subscribe at:  http://www.us.oup.com/us/subscriptions/subscribe/?view=usa&view=usa ), but those of you who have lives might appreciate today's "Quotation of the Day":

"Now and then you may be tempted to write passionately for a great cause. You should resist the temptation. A few writers have managed great passion for great causes, but success is rare in passionate writing because so few writers control passion well. Passion becomes bombast if it is angry. It often becomes fulsome sentiment . . . . Few readers are convinced by superheated prose; they are more often embarrassed, and sometimes they are enraged." Richard Marius, A Writer's Companion 19 (1985).

That strikes me as probably true, but, boy, is that hard to remember when you're writing about convictions that stem from your deepest beliefs, isn't it?

Lisa

Solum on Public Legal Reason

Larry Solum has posted his new article, Public Legal Reason.  Here is the abstract:

This Essay deveopes an ideal of public legal reason—a normative theory of legal reasons that is appropriate for a society characterized by religious and moral pluralism. One of the implications of this theory is that normative theorizing about public and private law should eschew reliance on the deep premises of deontology or consequentialism and should instead rely on what I shall call public values—values that can be affirmed without relying on the deep and controversial premises of particular comprehensive moral doctrines.

The ideal of public legal reason is then applied to a particular question—whether welfarism (a particular form of normative law and economics) provides the sort of reasons that appropriate for legal practice. The answer to that question is no—to the extent that welfarism contends that the normative assessment of legal policies should rely exclusively on information about individual preferences, welfarism relies on deep and controversial premises of consequentialist moral theory that are fail the test of public reason. The Essay also investigates the thesis—advanced by Louis Kaplow and Steven Shavell that any fairness principle (a nonwelfarist method of policy assessment) can violate weak Pareto (making everyone worse off). Whatever the implications of Kaplow and Shavell's argument, it does not show that welfarism can provide public legal reasons. The essay concludes that law's justifications should rely on normative principles that are accessible to reasonable citizens, whether they are theists or atheists, deontologists or consequentialists, moral philosophers or economists. Law's deliberations should be shallow and not deep. Law's reason should be public.

Rob

Monday, November 13, 2006

Neuhaus on The Gay (Un-)American

I count myself as an admirer of Richard John Neuhaus; even when I disagree with him, I find his analysis to be insightful and challenging.  But his post on the gay identity angle of the Ted Haggard scandal leaves me perplexed.  Neuhaus writes:

There was an op-ed in Wednesday’s New York Times asserting that 70 percent of Americans personally know someone who is gay. That seems statistically improbable. Somewhere between 2 and 4 percent of American males identify themselves as gay. (The figure is much lower for women.) Most of them are congregated in cities, and in those parts of cities known to be gay-friendly. Chelsea and the West Village, along with the Castro district of San Francisco and counterparts in other larger cities, are not America. Gays live in such places precisely because they are not America.

Admittedly, young people in college, or at least in most colleges, do know personally people who are gay; and some of them they count as friends. Most campuses have special-interest LGBT groups, and students are indoctrinated in gay ideology under the rubric of opposing “homophobia.” At one Ivy League college, faculty members told me over dinner that one-third of the male students were at least “experimenting” with homosexuality. Among the women, there were also a large number of “LUGS” (Lesbian Until Graduation). Whether such developments will significantly increase the percentage of adults identifying themselves as gay or lesbian will, I suppose, be discovered in due course. Apart from an intuition for the natural built into human beings, there are all kinds of incentives and pressures militating against such a significant increase.

What most Americans know about being gay is distinctively unattractive and, in their view, morally repugnant. Gay advocates deceive themselves in thinking that the more people know about homosexuality the more they will approve of it.

First, as J. Peter Nixon remarked over at Commonweal, I'm curious why the West Village, Chelsea, and the Castro District are "not America?"  Putting that aside, though, the suggestion that gays are some sort of cultural oddity on display only in places where the gay lifestyle is most exuberantly celebrated is to dismiss the sociological reality that many gays have integrated into the mainstream.  I have never lived in any of the "gay-friendly" neighborhoods identified by Neuhaus.  But I have become friends with gays and lesbians while living in Boston, Chicago, New York, and Denver.  In Minneapolis, I live in a neighborhood crawling with minivans, lemonade stands, soccer moms, and several gay couples whose kids participate in the life of the neighborhood as fully as anyone else.  To suggest that gays' wider acceptance in society is a direct result of being "indoctrinated" in college is to promote a caricature not only of college, but also of gays' evolving relationships with the surrounding society. 

What exactly is Fr. Neuhaus hoping to accomplish with this sort of argument?  More importantly, if a gay person reads his post, what conclusions will that person be justified in drawing about the Gospel of Jesus Christ?

Rob

"American" or "Catholic"

A few days ago, commenting on a Time magazine story, "God or Country?", I said I was "sad" "to learn that, among Catholics, nearly two-thirds of those polled said they are 'Americans first' (and not 'Catholics first')."   In response, MOJ-friend and philosopher John O'Callaghan writes:

I am confused by . . . your recent post.  You make a very good point in the body of the post about Church and state.  But then your sadness confuses me because the ambiguity of it against the background of your point.  Are you sad because those two-thirds should have said "Catholic first?"  Or are you said because they didn't realize the silliness of the question?

. . .  A judgment of first on these matters seems to require a common category.  "Who came in first" requires at least tacit reference to a category that admits of ranking in terms of first, second, third, etc.  Are we talking about a footrace, or a national championship football season?  Did Rick come in first or the Fighting Irish?  How answer such a question?

Now even when talking only about political regimes, the question seems to make little sense.  Are you a citizen of South Bend first, or a citizen of the United States.  Since we are dealing with nested political categories, and not a common one here, it would be a mistake to accept the coherence of the question.

But then when we turn to the question of the Church or the political community first, we don't even have a common category at any level, or so it seems to me, unless it is a most general level of "community," which doesn't admit of sufficient specificity to know how to answer the question.  Are you a father first, a team member, a fan, a Catholic, or a citizen?  If the Church is a political community like a nation state, then I suppose the question might be coherent.  Or if the nation state is a church then I suppose the question might be coherent.  But what if, as I think is the case, the Church is not a nation state and the nation state is not a Church?  Isn't the question incoherent?  And wouldn't we be better served by educating members of the nation state and members of the Church on just why it is incoherent?

CST and Health Care

Michael S. asks whether Catholic thought requires us to favor some form of affordable universal health care.  The answer to that question is a resounding yes. 

At Villanova's Fourth Annual Symposium on Catholic Social Thought and the Law (which focused this year on the Preferential Option for the Poor) and again at a faculty colliquium at U. St. Thomas a few weeks ago, I presented a paper entitled: "Poor Coverage": The Preferential Option for the Poor and Access to Health Care.  In it I argue that Catholic social thought demands that we think about access to health care as a basic human right and that providing all citizens with access to health care must be viewed as a collective responsibility.  In Pacem in Terris, Pope John XXIII identified health care as among the basic rights that flow from the dignity of the human person.  Pope John Paul II similarly included a right to sufficient health care as among the human rights endorsed by the Church.  The American bishops have also spoke of access to adequate health care as a basic right necessary for human beings to relaize the fullness of their dignity.

As Michael observes, the rub is always how do we get there.  My paper also looks at several approaches to health care reform in terms of thier adherence to the principles Catholic social thought.  The paper, which will be published in the Villanova Journal of Catholic Social Thought, will be posted at the sidebar below my name (hopefully today or tomorrow).

Hot New Religious Liberty Seminar

The contours of a new law school seminar are beginning to take shape in my mind: "The Religious Liberty Jurisprudence of 20th Century Popular Musicians."  One class will be devoted to the existential underpinnings of secularism, via John Lennon; another on the public accessibility of blasphemy as sanctionable conduct, via Madonna; another on the modern misunderstanding of authentic love, via a comparative study of Deus Caritas Est and the lyrics of leading 1980s hair bands; one on the powerful allure of evil as an inspirational worldview, via AC/DC; one on the problem human suffering poses for societies that take religion seriously, via XTC; one on the feasibility of solidarity as a legal principle in light of the Incarnation, via Joan Osborne; and with today's news comes the perfect content for a concluding class devoted to the uniquely insightful contributions to the modern understanding of religious liberty offered by Sir Elton John.

Rob

Catholic Identity on Campus

The Boston Globe profiles the movement among Catholic colleges and universities to reclaim their Catholic identity, focusing on Boston College.

Rob

Sunday, November 12, 2006

Exploring Equity Further

I apologize, Mark, for the inartful way I juxtaposed my questions about what you meant by "equity" with my attempt to explain why I don't think equity arguments alone are going to provide corporations with the incentive to address the gender inequities you obviously appreciate.  It appears we both agree that there are good reasons for corporations to make efforts to restructure something about the way corporations work, and that doing so would most likely eventually have the effect of increasing the number of women on corporate boards, and that this would probably be a good thing.  (But maybe I went to far with the last "and" -- maybe you're not convinced of that.)

Another thing we both seem to agree on is that anyone interested in pursuing this debate needs to work harder at articulating exactly why it would be a good thing to have more women on corporate boards.  On March 16, 2007, the University of St. Thomas Law Journal is hosting a symposium on "Restructuring the Workplace to Accommodate Family Life," providing a forum for thinking through some of these issues.  While the focus of the conference is much broader than the issue of gender inequities in the corporate workplace (we will be addressing topics like just wage, immigration reform, welfare-to-work laws), it will provide an opportunity to explore some of the convergences and tensions between secular feminist legal theory and faith-based complementarity arguments.  Our two confirmed keynote speakers are Joan Williams (whose work on gender inequities in the workplace Mark alluded to in his last post) and Sr. Prudence Allen (author of the two-volume "The Concept of Woman" and thoughtful writer on complementarity).

We haven't yet completely constituted all the panels, so anyone who is interested in exploring these issues, or has suggestions for good contributors, should contact me ([email protected]).  And if you're interested in participating in this discussion, mark your calendar for March 16 and buy some tickets to Minneapolis, where the weather that time of year will alone be enough to make it worth the trip.........

Lisa

Universal Health Care

Our annual benefits enrollment period just ended.  In 2007, an employee at OU will pay $780 a month out of pocket for health insurance to cover the employee and family with a $500 per person and $1000 per family deductible.  Some of our secretaries make less than $20,000 a year.  Many jobs at OU pay in the $30's and 40's.  And, I suspect that starting faculty salaries in some departments aren't much more than that.  For most of these folks, I would think $9360 a year for health insurance is cost prohibitive.

I would think that health care is a basic and common good of the society.  If this is the case, there ought to be some way to offer every person in the United States affordable health care (maybe not a Mercedes level but at least a Chevy quality) while maintaining proper market incentives for health care providers and proper disincentives for those inclined to run to the doctor every time a child sneezes. 

What do others think?  Does our Catholic faith require us to favor some form of affordable universal health care?  I am sure that any consensus would break down when we moved from the principle to the implementation with some of us preferring greater freedom in the market and others preferring a more centralized government plan.  But, I am interested in knowing whether we have a consensus on the principle. 

Thanks, Michael S. 

Equity Means More than Non-Discrimination: Women on Corporate Boards Continued

I'm afraid that Elizabeth has interpolated a term into my argument that was not there, and used it to create a straw man (or person) to whack. In my insistence on "equity" rather than "difference" as the basis for why there should be more women on boards, I never argued that equity is simply a matter of non discrimination, and that all corporations should do is avoid discrimination in the way it hires directors (though of course it should avoid discrimination.) I am fully prepared to argue that "equity" includes a recognition that the workplace is gendered in a way that makes it very difficult for women to reach the highest ranks of leadership. This is true whether we are talking about the highest partnership ranks of law firms, the office of CEO or corporate boards. Joan Williams' excellent work on the gendered construction of the workplace and its impact on women's (and men's) lives shows the nature of this problem deamatically.This result in itself is inequitable, and reason in itself to want to see more women in all of those places, including corporate boards. Recognizing this inequity and resolving to do something about it will require much more than a "passive" policy of non discrimination. That is what I mean by "equity", which is something much more than what Elizabeth seems to assume I mean. Now, perhaps having more women on boards means that boards may be more sensitive to how employment and compensation policies effect women, then perhaps we should have more women on boards for that reason (as I suggested in my earlier post), but that does not mean that the larger presence of women on boards will make a meaningful difference to the larger question of corporate governance as a whole. Once again, this whole debate makes little sense without some threshold clarification of what one means by "good" and "bad" governance and how the greater presence of women will contribute to the former. The late pope's reference to the "genius of women" is helpful only when we understand when and how the "genius of women" (which itself could use some definition) is relevant to a particular question. Elizabeth's reference to "efficiency" also doesn't help: it does not help us understand how the dominant norm of shareholder wealth maximization is (or is not) adequate as a means of describing the goal of corporate governance (a very fraught debate), and whether (or how) women would take a different approach to that goal. Once again, intuitions of "difference" are not enough to make this argument fruitful.

--Mark